TEXAS DISCOVERY UPDATE ROOTING FOR ACORNS TEXAS DISCOVERY UPDATE 2016

SCOPE OF DISCOVERY UPDATE “I’D RATHER BE FISHING” PART II DISCOVERY TOOLS PART I SCOPE OF DISCOVERY UPDATE 2016 “I’D RATHER BE FISHING” WWW.CUTTINGEDGEJUSTICE.COM

pgold@agtriallaw.com ACORNS PP

ALERT!

TEXAS SUPREME COURT WANTS TO AMEND THE DISCOVERY RULES . . . AGAIN!

FEDERAL RULES WITH TEXAS INTERPRETATION ?

Carr v. State Farm Mutual Automobile Insurance, Company, 2015 WL 8010920 (N. D. Tex. Dall. Div. 2015) Magistrate David Horan

HOT OFF THE PRESSES

SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc. 2016 WL 3902516 (Tex. App. Houst.14TH 2016)

Record must reveal that the TC considered lesser sanctions; Rule 193.6 does not authorize striking opinion in its entirety because of failure to produce an animation. Plaintiffs did not assert Rule 193.6 in its motion to strike. Dissent: Order did not prevent D from creating animation on eve of trial.

MOTION TO LIMIT DISCOVERY UNDER RULE 192 REQUIRES EVIDENCE In Matter of Issuance of Subpoenas Depositions of Bennett, --- S.W.3d ---- 2016 WL 4533670 (Tex. App. – Houst.[ 14th ] 2016)

STANDING TO OBJECT TO DWQs SERVED ON THIRD PARTIES In re R. C. K STANDING TO OBJECT TO DWQs SERVED ON THIRD PARTIES In re R.C.K., Not Reported in S.W.3d 2016 WL 3197585 (2016)

OPINIONS OF FACT WITNESS NOT DESIGNATED AS TESTIFYING EXPERT STRICKEN Paschal v. Engel, Not Reported in S.W.3d 2016 WL 4506298 (Tex. App. – Austin 2016)

MOTION TO WITHDRAW DEEMED ADMISSIONS, MERIT PRECLUSIVE ADMISSIONS- STANDARD OF REVIEW In re TT Fountains of Tomball, 2016 WL 3965117 (Tex. App. Houst. 1st 2016)

DUE PROCESS REQUIRED The Wheeler court determined that, when requests for admission are merit preclusive, thereby raising due process concerns, the trial court is required to allow their withdrawal unless the party requesting withdrawal acted with “flagrant bad faith or callous disregard of the rules.” Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005)

DEFENSE MEDICAL EXAMINATIONS (DMEs) EVISCERATION OF LESS INTRUSIVE MEANS REQUIREMENT? In re H.E.B. Grocery Company, L.P., --- S.W.3d ---- 2016 WL 3157533 (Tex. 2016)

HEB’s defense hinges in large part on its challenges to the nature, extent, and cause of Rodriguez’s injuries. As noted, these issues will in turn depend significantly on competing expert testimony. HEB seeks to allow its expert the same opportunity as Rodriguez’s expert to fully develop and present his opinion, ensuring a fair trial. Without that opportunity, HEB lacks an adequate appellate remedy.

DISCOVERY CONTROL ORDERS

EFFECT OF CONTINUANCE ON DCO DEADLINES Jafar v EFFECT OF CONTINUANCE ON DCO DEADLINES Jafar v. Mohammed, Not Reported in S.W.3d, 2016 WL 1455978 (Tex. App. – Houst. [14th] 2016)

DISCOVERY TOOLS

DISCLOSURE

IDENTIFICATION OF INDIVIDUALS WITH KNOWLEDGE OF RELEVANT FACTS Gibbons v. Luby’s Inc., Not Reported in S.W.3d, 2015 WL 5116146 (Tex. App. – Fort Worth 2015)

EXPERT DISCLOSURE

MUST SERVE A REQUEST FOR DISCLOSURE In re C. C, M. C. , L. O. , and H MUST SERVE A REQUEST FOR DISCLOSURE In re C.C, M.C., L.O., and H.P., 2015 WL 5244401 (Tex. App. – Amarillo 2015)

EXPERT OPINIONS WITHIN MEDICAL RECORDS In Interest of K. M. – J EXPERT OPINIONS WITHIN MEDICAL RECORDS In Interest of K.M. – J., Not Reported in S.W.3d., 2015 WL 5451010 (Tex. App. – Houst. [1st Dist. 2015) Harmless error

INCOMPLETE DISCLOSURE = FAILURE TO RESPOND RULE 193 INCOMPLETE DISCLOSURE = FAILURE TO RESPOND RULE 193.6 SANCTIONS In the Interest of D.W. and K.W. --- S.W.3d ---, 2015 WL 1262820 (Tex. App. – Ft. Worth, 2015)

SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc. 2016 WL 3902516 (Tex. App. Houst.14TH 2016)

INTERROGATORIES

CONTENTION INTERROGATORIES Sheffield Development Company, Inc. v CONTENTION INTERROGATORIES Sheffield Development Company, Inc. v. Carter & Burgess, Inc., --- S.W.3d ----, 2012 WL 6632500 (Tex.App.-Waco)

REQUESTS FOR PRODUCTION

OBJECTIONS FEDERAL COURT WITHHOLDING STATEMENT FED. R. CIV. P OBJECTIONS FEDERAL COURT WITHHOLDING STATEMENT FED. R. CIV. P. 34(C) An objection must state whether any responsive material are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

ANY AND ALL DOCUMENTS facially overbroad both in time and in scope In re Air Liquide Industrial U.S.,LP, 2015 WL 2124999 (Tex. App. – Beaumont, 2015)

REQUEST TO ENTER, INSPECT, AND PHOTOGRAPH PROPERTY  

MUST LEAD TO ADMISSIBLE EVIDENCE, NOT DEMONSTRATIVE AID In re Goodyear Tire & Rubber Company, 437 S.W. 3d 923 (Tex. App-Dallas 2014, orig. proceeding)

REQUESTS FOR ADMISSIONS

DEEMED ADMISSIONS SHOULD NOT BE USED TO DISPOSE OF CASE Marino v DEEMED ADMISSIONS SHOULD NOT BE USED TO DISPOSE OF CASE Marino v. King, 355 S.W.3d 629, 632-34 (Tex. 2011)

MOTION TO WITHDRAW DEEMED ADMISSIONS, MERIT PRECLUSIVE ADMISSIONS- STANDARD OF REVIEW In re TT Fountains of Tomball, 2016 WL 3965117 (Tex. App. Houst. 1st 2016)

DEPOSITIONS

SCOPE SAME FOR DEPOSITIONS AS OTHER DISCOVERY DEVICES In re Arpin Moving Systems, LLC, --- S.W.3d --- 2013 WL 6229156 (Tex. App.- Dallas 2013)

MEDICAL AND PSYCHOLOGICAL EXAMINATIONS

IT’S NOT AN INDEPENDENT EXAMINATION Guzman v. Jones, 804 F IT’S NOT AN INDEPENDENT EXAMINATION Guzman v. Jones, 804 F.3d 707, at footnote 1 (5th Cir. 2015)

“DANCING WITH WOLVES IN DRAG” TACTICS AND STRATEGY WITH REGARD TO DEFENSE REQUESTED MENTAL AND PHYSICAL EXAMS (DME’S) WWW.CUTTINGEDGEJUSTICE.COM

IMPORTANT HISTORICAL CASES Schlagenhauf v. Holder, 279 U. S. 104, 85 S IMPORTANT HISTORICAL CASES Schlagenhauf v. Holder, 279 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) Coates v. Whittington, 258 S.W.2d 749 (Tex. 1988) In re Ten Hagen Excavating, Inc., 435 S.W.3d 859 (Tex. App. – Dallas 204, orig. proceeding)

UPDATE In re H. E. B. Grocery Company, L. P. , --- S. W UPDATE In re H.E.B. Grocery Company, L.P., --- S.W.3d ---- 2016 WL 3157533 (Tex. 2016)

In re Reliable Commercial Roofing Services, Inc., Not Reported in S.W.3d (Tex. App. Houst. 1st Dist. 2016)

In re Offshore Marine Contractors, Inc. , --- S. W In re Offshore Marine Contractors, Inc., --- S.W.3d ---- 2016 WL 3362658 (Tex. App. – Houst. 1st Dist. 2016)

EXPERTS

BIAS- DISCOVERY OF FINANCIAL RECORDS VERBOTEN In re Ford, 427 S. W BIAS- DISCOVERY OF FINANCIAL RECORDS VERBOTEN In re Ford, 427 S.W. 3d 396 (Tex. 2014)

DISCLOSE AS SOON AS PRACTICABLE Navarrete v. Williams, 342 S. W DISCLOSE AS SOON AS PRACTICABLE Navarrete v. Williams, 342 S.W.3d 116 (Tex. App.–El Paso 2011, no pet.)

DE-DESIGNATION – CONSULTING EXPERT WHO’S MENTAL IMPRESSIONS ARE REVIEWED In re Robins & Morton Group, Not Reported in S.W.3d, 2016 WL 2584526 (Tex. App. – San Antonio, 2016)

DUTY TO SUPPLEMENT AUTOMATIC SANCTIONS NOT CONSIDERED DEATH PENALTY SANCTIONS In Lee v. Wal-Mart, Not Reported in S.W.3d, 2016 WL 1072644 (Tex. App. - Eastland- 2016)

SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc. 2016 WL 3902516 (Tex. App. Houst.14TH 2016)